James  Wilson 
and  the  Constitution 


Burton  Alva  Konkle 


t 


Konkle,  Burton  Alva,  1861- 
1944. 

James  Wilson  and  the 

— g  f  i  f-  n>  -i  nn _ ___ 


Digitized  by  the  Internet  Archive 
in  2018  with  funding  from 
Princeton  Theological  Seminary  Library 


https://archive.org/details/jameswilsonconst00konk_0 


James  Wilson 
and  The  Constitution 

THE  OPENING  ADDRESS 
in  the  official  series  of  events  known  as 

The  James  Wilson  Memorial 


%  , 

BURTON  ALVA  KONKLE 


Secretary  of  The  James  Wilson  Memorial  Committee 


Delivered  before 

The  Law  Academy  of  Philadelphia 

on  November  14,  1906 


Published  by  Order  of  the  Law  Academy 

1907 


SAMUEL  W.  WOOLFORD,  Jr. 
JAMES  McMULLAN 
STANLEY  WILLIAMSON 

Committee  on  Address ■ 


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INTRODUCTION 


At  the  request  of  the  Committee  on  Address  of  the 
Law  Academy,  a  few  words  of  preface  are  written  in  order 
to  show  the  relation  of  the  address  which  follows  to  the 
ceremonies  attendant  upon  the  removal  of  the  remains  of 
James  Wilson,  in  the  Autumn  of  1906,  from  Edenton, 
North  Carolina,  to  Philadelphia. 

The  author,  Mr.  Konkle,  in  his  many  years  of  inves¬ 
tigation  of  the  sources  of  American  history,  grew  to 
appreciate  Wilson,  particularly  his  side  as  a  statesman  and  a 
great  leader  of  the  Constitutional  Convention.  In  his  addi¬ 
tional  researches,  he  discovered  that  the  body  of  this  emi¬ 
nent  Philadelphian  lay,  unmarked  and  almost  forgotten,  in 
a  Southern  State.  The  thought  of  placing  his  remains 
beside  those  of  his  wife  in  Christ  Church  may  have 
occurred  to  many  in  the  years  which  have  followed  his 
death,  yet  it  remained  for  Mr.  Konkle  to  originate  and  carry 
to  a  successful  conclusion  this  laudable  project. 

The  James  Wilson  Memorial  Committee,  composed  of 
jurists,  lawyers  and  public  officials,  was  formed,  and  gen¬ 
eral  attention  was  attracted  to  the  movement  by  articles 
in  the  public  press,  and  by  an  address  on  Wilson  delivered 
by  Mr.  Konkle  before  the  Historical  Society  of  Pennsyl¬ 
vania  in  the  spring  of  1906.  The  interest  of  President 
Roosevelt  was  aroused,  and  a  considerable  portion  of  his 
speech  at  the  dedication  of  the  new  State  Capitol  was 
devoted  to  a  narration  of  the  public  services  of  Wilson. 
The  present  address  before  the  Law  Academy  then  followed, 
and  was  adopted  by  the  Memorial  Committee  as  one  of  the 
events  upon  the  official  program. 

The  ceremonies  in  connection  with  the  removal  and  the 
reinterment  of  the  remains  were  of  a  most  impressive  and 
solemn  character.  The  body  was  brought  from  North 
Carolina  by  the  U.  S.  S.  Dubuque,  and  lay  in  state  in 
Independence  Hall.  It  was  then  taken  to  Christ  Church, 
escorted  by  the  First  City  Troop  and  followed  by  Justices 
of  the  Supreme  Court  of  the  United  States,  and  many 


4 


others  prominent  in  official  life.  Delegates  from  numerous 
patriotic  and  legal  associations  were  in  the  procession.  The 
Law  Academy  was  represented  by  a  committee  consisting 
of  Carlyle  H.  Ross,  Joseph  H.  Taulane,  John  McClintock, 
Jr.,  Stanley  Williamson,  George  J.  Edwards,  Jr.,  Samuel 
W.  Woolford,  Jr.,  James  McMullan,  Howard  H.  Yocum, 
Francis  M.  Gumbes,  Graham  C.  Woodward,  Theodore  L. 
Cobaugh,  Stanley  Folz.  In  the  church  appropriate  ad¬ 
dresses  were  delivered  by  men  of  national  reputation.  An 
account  of  the  proceedings,  and  the  official  texts  of  the 
addresses,  were  published  by  Mr.  Konkle  in  the  American 
Law  Register  for  January,  1907,  at  the  requests  of  its  editor 
and  the  Memorial  Committee. 

Strange  as  it  may  appear,  the  following  address  is  the 
first  comprehensive  biographical  sketch  of  Wilson.  The 
author  was  reluctant  to  consent  to  its  publication,  as  he  pre¬ 
ferred  to  confine  himself  to  a  full  treatment  of  the  subject 
in  a  contemplated  production  of  the  life  and  works  of  Wil¬ 
son.  In  honoring  the  request  of  the  venerable  Law 
Academy  for  its  publication,  he  cannot  have  failed  to 
remember  that  the  constant  demands  for  systematic  instruc¬ 
tion  in  the  law  by  the  students  of  this  society  who  in  the 
year  1789  met  in  one  of  the  rooms  of  the  College  of 
Philadelphia,  undoubtedly  led  to  the  Wilson  law  lectures 
the  next  year,  and  the  establishment  of  a  chair  of  law  in 
the  latter  institution. 

The  widespread  attention  now  directed  to  Wilson  as 
a  statesman  has  brought  him  hosts  of  admirers.  Many  may 
rise  up  to  follow  in  the  path  which  has  been  made  for  them, 
but  the  following  pages  from  the  pen  of  one  who  in  his 
search  for  historical  truth  has  pushed  his  way  over  untrod¬ 
den  fields  must  always  have  an  especial  interest  and  value. 

William  MacLean,  Jr., 

Penn  Square  Building, 

Philadelphia,  Pa. 


September  1,  1907. 


JAMES  WILSON 
AND  THE  CONSTITUTION 


On  this  14th  day  of  May,  a  full  century  and  nineteen 
years  ago,  a  little  group  of  distinguished  Virginians  and  • 
Pennsylvanians  ascended  the  steps  of  the  old  State  House 
and  gathered  in  the  east  room  where,  a  decade  before,  had 
been  witnessed  the  signing  of  an  instrument  that  had  de¬ 
clared  free  the  whole  people  on  the  American  shore.  These 
eminent  representatives,  of  the  two  greatest  States  created 
by  that  people,  were  gathered  on  this  May  day  with  great 
concern  and  anxiety,  because  that  short  but  evenful  decade 
had  taught  them  that  the  freedom  which  they  had  won  was 
but  the  foundation,  and  in  no  sense  the  mighty  structure  of 
nationality  itself.  There  stood  the  revered  general  who  had 
led  the  fight  for  freedom  and  the  aged  and  feeble  and  not 
less  famous  diplomatist  who  had  urged  a  vague  vision  of 
that  nationality  upon  his  people  nearly  a  quarter  of  a  cen¬ 
tury  before.  By  their  side  were  two  men  of  a  younger  gen¬ 
eration,  to  whom  both  looked  with  hope  for  completion  of 
the  mighty  work  that  had  scarcely  been  more  than  begun. 
The  younger  of  these  was  Madison,  who,  although  but 
thirty-six  years  of  age,  had  been  Virginia’s  most  able  repre¬ 
sentative  in  the  Continental  Congress  since  about  the  close  of 
the  Revolution.  The  other,  a  man  in  his  prime  at  forty-five 
years,  was  the  most  learned  and  able  lawyer  in  America, 
the  head  of  Madison’s  own  profession,  the  man  whom  Wash¬ 
ington  himself  had  chosen  to  teach  the  law  to  his  favorite 
nephew  some  years  before,  and  the  one  who  had  long  been 
chief  counsel  for  Morris,  the  financier  of  the  Revolution, 
and  for  France — America’s  great  ally  in  that  conflict. 

James  Wilson,  as  he  stood  in  that  group,  was  known 
to  them  to  be  much  more  than  the  most  learned  and  able 
lawyer  among  all  who  should  gather  at  this  convention, 
as  shall  presently  appear ;  but  no  more  significant  knowledge 


6 


of  him  could  be  held  by  a  body  of  leaders  such  as  these, 
gathering,  as  they  were,  from  all  quarters  of  the  coast,  to  re¬ 
create  the  fundamental  law.  Other  things  being  equal,  it 
was  a  fact  that  would  enable  the  most  casual  student  to  pre¬ 
dict  with  perfect  safety  a  prominence  and  dominance  in  its 
deliberations,  such  as  only  an  expert  in  his  field  could  com¬ 
mand.  To  whom,  indeed,  would  those  men  turn  for  their 
soundest  counsel  in  the  creation  of  fundamental  law,  if  not 
to  the  most  able  and  learned  student  of  law  on  the  American 
shore  ? 

While  the  Virginians  and  Pennsylvanians  are  discuss¬ 
ing  their  program  with  other  delegates  during  the  next  ten 
days  while  waiting  for  a  quorum,  let  us  take  a  closer  look  at 
this  American,  whom  the  French  nobleman,  Chastellux, 
described  in  his  volumes  five  years  before  as  “the  celebrated 
lawyer.”  In  appearance  his  was  a  strikingly  erect  figure, 
about  six  feet  in  height,  with  a  full  face  of  large  features 
and  large  eyes,  whose  near  sight  compelled  constant  use  of 
glasses,  and  an  appearance  of  sternness  when  deeply  inter¬ 
ested.  His  features,  as  Mr.  Wain  says  in  a  sketch  which  is 
the  chief  original  source  regarding  him,  were  far  from  dis¬ 
agreeable,  and  his  voice,  while  powerful,  was,  in  its  cadence, 
perfectly  modulated.  While  slightly  constrained  in  man¬ 
ner,  he  was  dignified  and  not  ungraceful,  with  an  air  of  dis¬ 
tinction  that,  to  the  radicals,  gave  him  the  stamp  of  aris¬ 
tocracy.  The  full  length  portrait  of  him  given  in  the  en¬ 
gravings  of  Trumbull's  “Signing  of  the  Declaration” — 
which  are  known  to  have  been  engraved  from  life — bear  out 
these  descriptions,  as  does  the  Montgomery  miniature,  which 
was  probably  painted  in  his  earlier  years.  Take  him  all  in 
all,  as  he  stood  there  in  that  old  east  room,  he  was  a  worthy 
product  of  the  best  Scotch  and  American  culture  and,  in 
physical  appearance,  a  not  unworthy  son  of  the  vicinity  of 
the  ancient  Pictish  capital  and  University  seat,  St.  Andrews. 

His  life,  thus  far,  had  been  spent  about  equally  in 
America  and  Scotland.  He  was  born  in  the  lowlands  near 


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St.  Andrews,  on  September  14th,  1742,  so  that  his  baby¬ 
hood  came  in  the  midst  of  the  revolution  of  1745.  His  par¬ 
ents,  Mr.  Wilson  and  his  wife,  Aleson  Landale  Wilson,  had 
several  children,  and,  while  little  is  known  of  the  parents, 
sufficient  is  known  to  determine  their  high  personal  charac¬ 
ter,  when  his  mother’s  letters  remind  him  years  later  that  his 
father  had  given  him  his  education  in  hopes  that  he  would 
devote  himself  to  the  ministry  of  the  church  and  that  she 
prays  for  nothing  so  much  as  that  he  be  ambitious  for  godly 
things.  He  was  but  twelve  years  old  in  November,  1757, 
when,  with  nine  other  boys,  he  tried  for  one  of  the  four  va¬ 
cant  Foundation  Bursaries  at  St.  Andrews  University,  and, 
according  to  their  records,  he  took  “fourth  place  in  the  order 
of  merit”  and  gained  one  of  them.  Just  how  long  he  studied 
there  is  not  known.  It  is  a  curious  fact,  however,  that  one 
Alexander  Wilson,  a  typefounder  of  St.  Andrews  and  later 
of  Glasgow,  became  Professor  of  Astronomy  in  Glasgow 
University,  and  that  his  second  son,  James,  entered  the  latter 
institution  in  1757.  If  this  was  not  James,  himself,  the  only 
other  entry  in  their  records  is  that  of  1762,  when  he  would 
be  seventeen  years  old,  and  his  father,  James,  a  resident  of 
County  Clydesdale,  and  Douglass  Parish — which  seems  the 
more  probable,  for  Mr.  Wain  definitely  states  that  after 
grammar  school  study  and  a  short  period  at  St.  Andrews, 
he  studied  in  the  Universities  of  Glasgow  and  Edinburgh. 

“And  what  an  age  was  that  in  the  history  of  Scotland,” 
says  Frank  Gaylord  Cook,  a  Boston  lawyer,  in  his  excellent 
estimate  of  Wilson  in  the  September  Atlantic  for  1889 — 
“the  latter  part  of  the  eighteenth  century.  Edinburgh  was 
the  resort  of  that  celebrated  literary  coterie  which  included, 
with  others,  Hume,  Ferguson,  Adam  Smith,  Hugh  Blair  and 
William  Robertson.  The  one  last  named  was  principal  of 
the  University,  and  at  the  height  of  his  fame  and  activity 
as  a  theologian  and  historian;  Blair,  Regius  Professor  of 
Rhetoric,  was  delivering  those  lectures  which  embody  the 
literary  taste  found  in  the  classic  pages  of  Addison,  Pope 


8 


and  Swift ;  Adam  Smith,  Professor  of  Moral  Philosophy  at 
Glasgow,  was  developing  his  great  system  of  political 
economy.”  Just  how  long  or  when  he  studied  at  Edinburgh 
is  not  known,  although  its  records  show  that  he  entered  upon 
Blair’s  studies  in  rhetoric  in  1763  and  began  logic  and 
ethics  under  Stevenson  and  Ferguson,  respectively,  early  in 
1765.  That  he  had  more  notion  of  the  “wealth  of  nations” 
than  the  ministry  is  not  only  proven  by  his  career,  but  is 
suggested  in  a  letter  of  his  last  teacher  of  English,  a  Thomas 
Young,  who  began  giving  him  instruction  in  bookkeeping 
on  June  13,  1765,  just  before  Wilson  left  for  America. 
This  instructor  recalls  to  his  distinguished  pupil  how  he  also 
tried  to  instruct  him  in  golf,  and  “Jamie”  beat  him  on  every 
round — a  proceeding  which  he  observes  was  of  the  nature 
of  prophecy ! 

In  June,  1765,  Wilson  was  in  his  twenty-third  year, 
after  a  long  period  of  the  most  liberal  education.  Three 
months  before,  the  Stamp  Act  had  been  passed  and  America, 
led  by  the  distinguished  publicist,  Dickinson,  of  Philadel¬ 
phia,  and  others,  was  becoming  more  and  more  aroused. 
New  York  was  especially  aggressive  in  resistance,  and, 
young  Wilson,  borrowing  money  to  enable  him  to'  make  the 
voyage,  set  sail  for  that  port  and  was  there  in  abundant  time 
for  the  meeting  of  the  Stamp  Act  Congress  in  October. 
Here  came  the  brilliant  John  Dickinson  from  the  metropolis 
in  Pennsylvania — a  young  man  of  but  thirty-three,  whose 
discussion  of  economic  and  political  relations  of  this  question 
was  even  then  circulating  both  here  and  abroad — the  most 
able  and  popular  expression  on  the  subject  by  any  American. 
Here  came  McKean,  of  Delaware,  and  the  Livingstons  of 
Jersey  and  New  York,  and  Rutledge,  of  South  Carolina,  and 
Otis,  of  Massachusetts — the  first  real  American  Congress. 
It  did  not  take  young  Wilson  long  to  decide  that  he  would 
settle  in  the  metropolis  on  the  Delaware  where  the  cultured 
Dickinson  lived;  and,  about  the  time  that  Franklin  was  un¬ 
dergoing  that  dramatic  examination  in  the  House  of  Com- 


9 


mons,  in  February  next,  1766,  Wilson  was  in  Philadelphia 
with  highly  recommendatory  letters  to  Dr.  Richard  Peters, 
rector  of  Christ  Church,  and  others. 

Dr.  Peters  secured  his  introduction  as  an  usher  at  the 
College  and  Academy  on  Fourth  Street,  near  Arch,  at  once, 
and  in  his  examination  for  the  post  of  tutor  in  Latin  in  both 
institutions,  he  proved  to  be  “the  best  classical  scholar  who 
had  offered  as  a  tutor  in  the  Latin  department  of  the  Col¬ 
lege,”  says  Mr.  Wain.  His  first  “chum”  in  Philadelphia 
was  a  young  man  of  eighteen,  recently  graduated  from  the 
College,  named  White,  who  was  addressed  in  letters  by 
Wilson  thereafter  as  “Dear  Billy,”  and  later  in  life  Bishop 
White  testified  to  the  strength  of  this  early  friendship.  At 
a  spring  meeting  of  the  Trustees  Mr.  Wilson  had  asked  for 
the  degree  of  Master  of  Arts,  which  that  body  readily  agreed 
to  “in  consideration,”  says  Montgomery,  quoting  from  the 
minutes,  “of  his  merit  and  his  having  had  a  regular  educa¬ 
tion  in  the  universities  of  Scotland.”  It  was  conferred  on 
him  at  the  following  commencement,  and  also  on  “Joseph 
Reed,  Esq.,  of  Trenton,”  who  was  one  day  to  be  Governor  of 
Pennsylvania.  One  of  the  students  of  James  Wilson, 
Master  of  Arts  and  Latin  tutor  in  the  Academy,  was 
Alexander  Gray  don,  who  states  in  his  Memoirs  that  “the 
ushers,  during  the  term  of  my  pupilage,  a  period  of  four 
years,  or  more,  were  often  changed;  and  some  of  them,  it 
must  be  admitted,  were  insignificant  enough ;  but  others  were 
men  of  sense  and  respectability,  to  whom,  on  a  comparison 
with  the  principal,  the  management  of  the  school  might  have 
been  committed  with  much  advantage.  Among  these,”  not 
to  name  more,  “was  *  *  Mr.  James  Wilson  *  *.” 

The  young  instructor  in  Latin  was  greatly  impressed 
by  the  brilliant  Dickinson,  who'  had  written  the  resolutions  of 
the  late  Stamp  Act  Congress  which  had  apparently  secured 
the  repeal  of  that  measure.  Although  but  thirty-four  years 
of  age,  Dickinson  had  had  the  best  culture  the  colonies 
afforded  and  three  years  of  legal  training  in  the  Middle 


10 


Temple.  Since  1755 — over  ten  years — he  had  been  in  prac¬ 
tice,  such  as  learned  leisure  like  his  own  cared  to  undertake. 
Four  years  before  he  had  entered  the  Assembly  and  at  once 
had  become  the  leader  of  the  proprietary  party  against 
Franklin  and  the  popular  party,  but  had  virtually  become  a 
leader  of  all  parties  in  the  Stamp  Act  resistance.  He  was  a 
man  after  Wilson’s  own  heart,  and  to  study  law  under  him 
became  the  young  tutor’s  ambition  almost  immediately.  It 
required  the  intervention  of  young  White  and  Attorney 
(afterwards  Judge)  Richard  Peters,  however,  and  Wilson 
was  soon  so  deeply  engrossed  in  his  studies  that  he  effected 
a  loan  in  Scotland  and  gave  up  his  tutorship,  devoting  him¬ 
self  assiduously  to  his  studies  under  Dickinson  for  two  years. 
These  two  scholarly  men  were  not  so  unequal  as  a  decade’s 
difference  in  age  might  indicate,  for  what  Dickinson  gained 
in  the  Middle  Temple  and  his  decade  of  self-culture,  was 
somewhat  balanced  by  the  superior  university  training  of  his 
pupil  and  his  more  severe  purposes.  For,  it  did  not  require 
many  years  to  indicate  Wilson’s  equality  and  final  superi¬ 
ority.  Wilson  meant  to  make  a  severe  profession  of  the 
law,  while  Dickinson  was  the  cultured  country  gentleman 
and  was  soon  issuing  his  celebrated  “Farmer’s  Letters”  that 
almost  instantly  became  the  faint  voice  of  American  nation¬ 
ality.  Wilson  was  admitted  to  the  Philadelphia  Bar  in  No¬ 
vember,  and  the  first  of  the  “Farmer’s  Letters”  appeared  in 
the  Pennsylvania  Chronicle  at  the  beginning  of  the  follow¬ 
ing  month,  1767. 

Some  time  in  1768 — Wilson’s  twenty-sixth  year — when 
the  Townshend  Acts  were  still  irritating  America  and  Penn¬ 
sylvania  was  negotiating  for  the  great  land  purchase  from 
the  Indians,  he  sought  a  location  to  begin  the  practice  of  law 
and  first  tried  Reading.  A  few  months  later,  however,  he 
decided  upon  Carlisle  as  more  advantageous,  and,  according 
to  Judge  Biddle,  who  has  examined  the  records  of  his  resi¬ 
dence  there  more  carefully  than  any  one  else,  he  located  in 
January,  1769,  and  in  April  following  was  admitted  to  the 


II 


Supreme  Court.  There  is  little  record  of  his  practice  during 
this  first  year,  but  there  is  evidence  of  some  of  the  most  pro¬ 
found  and  significant  study  that  he  ever  did.  The  irritating 
Townshend  Acts  by  Parliament  had,  during  this  year,  so 
incensed  the  colonies  that  non-importation  agreements  were 
general  everywhere.  The  prevailing  opinion  in  America 
was  that  Parliament  had  many  rights  over  the  colonies,  but 
not  that  of  taxation.  Even  Burke  admitted  the  right,  and 
there  was  a  growing  sentiment  in  Parliament  that  that  body 
had  all  rights  over  the  colonies.  Wilson  determined  to  in¬ 
vestigate  the  subject  himself,  “with  a  view  and  expectation,” 
said  he  in  the  preface,  “of  being  able  to  trace  some  consti¬ 
tutional  line  between  those  cases,  in  which  we  ought,  and 
those  in  which  we  ought  not,  to  acknowledge  the  power  of 
Parliament  over  us.  In  the  prosecution  of  his  inquiries  he 
became  fully  convinced  that  such  a  line  does  not  exist;  and 
that  there  can  be  no  medium  between  acknowledging  and 
denying  that  power  in  all  cases.  Which  of  these  two  alter¬ 
natives  is  most  consistent  with  law,  with  the  principles  of 
liberty,  and  with  the  happiness  of  the  colonies,  let  the  public 
determine.”  “Many  will,  perhaps,  be  surprised  to  see  the 
legislative  authority  of  the  British  Parliament  over  the  Colo¬ 
nies  denied  in  every  instance.  Those,  the  writer  informs, 
that,  when  he  began  this  piece,  he  would  probably  have  been 
surprised  at  such  an  opinion  himself;  for,  it  was  the  result , 
and  not  the  occasion of  his  disquisitions.” 

His  conclusion  was,  that  the  colonies  were  subject  only 
to  the  Crown  and  in  no  degree  to  Parliament.  This  was  a 
position  in  opposition  to  the  British  leaders  and  considerably 
in  advance  of  those  of  the  colonies  themselves,  but  based 
solidly  upon  the  English  Constitution,  as  we  all  now  know. 
“This,”  says  Mr.  Cook,  in  the  Atlantic  Monthly ,  “displays 
an  originality,  a  penetration,  a  grasp  and  a  foresight  that 
places  him  among  the  greatest  political  thinkers  of  his  time. 
Rising  above  the  level  of  contemporary  political  thought,  he 
laid  bare  the  absolutist  tendency  in  the  ministerial  policy, 


12 


showing  that  it  was  both  false  and  dangerous  to  English 
liberty  and  to  the  English  Constitution.  At  the  same  time, 
pointing  to  the  history  of  colonization  and  the  terms  of  the 
colonial  charters,  he  showed  what  policy  would  both  accord 
with  legal  precedent  and  promote  the  prosperity  of  the  em¬ 
pire.”  “Allegiance  to  the  King,”  said  Wilson  on  page  21, 
“and  obedience  to  the  Parliament  are  founded  on  very  dif¬ 
ferent  principles.  The  former  is  founded  on  protection,  the 
latter  on  representation.  An  inattention  to  this  difference 
has  produced,  I  apprehend,  much  uncertainty  and  confusion 
in  our  ideas  concerning  the  connection,  which  ought  to  sub¬ 
sist  between  Great  Britain  and  the  American  Colonies.” 
Besides  his  own  vigorous  reasoning  he  quoted  Blackstone, 
Burlamaqui,  Montesquieu,  Bacon,  Coke,  the  reports  of  Ray¬ 
mond,  Salkeld  and  many  others,  showing  that  decisions  had 
already  settled  the  matter  as  to  Ireland,  Jamaica  and  other 
regions,  which  had  their  own  legislatures.  One  cannot  go 
astray  in  saying  that  this  paper  must  be  considered  one  of 
the  first  in  the  constitutional  literature  of  the  Revolution,  and 
it  came  from  the  pen  of  a  young  lawyer  in  Carlisle  in  his 
twenty-seventh  year.  Had  it  determined  English  policy  at 
this  period,  as  it  does  now,  the  British  flag  might — other 
things  being  equal — be  floating  on  both  sides  of  the  St. 
Lawrence.  The  paper,  however,  was  not  ready  for  the  press 
when  the  non-importation  agreements  ceased  and  it  was  laid 
aside  in  hopes  that  its  counsels  would  yet  prevail  in  London. 

While  he  was  at  Reading  there  were,  a  half  dozen  or  so 
miles  distant,  some  iron  works  owned  by  Mr.  Bird,  whose 
name  was  given  to  the  settlement,  Birdsboro,  and  the  young 
attorney  became  interested  in  his  daughter,  Miss  Rachel. 
So  that  his  industry  in  his  early  years  at  Carlisle  was  no 
doubt  partly  prompted  by  visions  of  a  home  of  his  own. 
Judge  Biddle  has  shown  that  in  1770  he  was  taxed,  but 
without  property;  in  '71,  with  a  lot;  in  ’72,  with  a  lot,  two 
houses  and  a  cow;  in  ’73,  a  lot,  two  houses,  a  cow  and  a 
negro  slave;  and  in  ’74,  horses  and  farms  appear;  so  that  it 


. 


- 


13 


might  safely  be  predicted  that  he  married  about  the  time  he 
got  the  lot  in  ’71,  even  before  the  actual  facts  are  known! 
The  tax  receipts  may  also  be  supplemented  by  the  informa¬ 
tion  that  a  still  more  precious  possession  arrived  in  1772,  on 
September  23d,  in  the  form  of  a  daughter,  Mary,  the  only 
one  of  his  children  who>  ever  married.  His  prosperity  was 
well  founded,  for  out  of  817  cases  in  the  Carlisle  courts 
alone  in  the  five  years  including  and  succeeding  1770,  At¬ 
torney  Wilson  appeared  in  nearly  half  of  them,  346,  to  be 
exact,  and  it  is  well  known  that  his  practice  extended  to  other 
counties  and  the  Supreme  Court.  In  addition  to  these  ex¬ 
ertions,  however,  he  found  time,  in  1783,  to  assume  a  pro¬ 
fessorship  of  English  Literature  in  the  College  of  Philadel¬ 
phia,  although  it  must  have  been  of  the  nature  of  a  special 
course  of  lectures  at  certain  intervals,  as  meager  information 
regarding  them  would  also  indicate;  although  had  not  Bos¬ 
ton  gone  so  extensively  into  operations  in  tea  the  following 
winter  these  lectures  on  the  pleasing  field  of  literature  might 
have  been  longer  lived. 

The  winter  of  ’73-’74  had  hardly  passed  when  Parlia¬ 
ment  began  to  make  an  example  of  Boston  and  carry  to  the 
very  limit  those  vicious  conceptions  of  its  power,  on  which 
Wilson  thought  so  profoundly  five  years  before.  In  June 
the  Boston  port  was  to  be  closed;  the  Quebec  Act  alarmed 
all  the  colonies;  Virginia  called  a  colonial  congress;  other 
States  also  called  them,  and  Philadelphia  was  agreed  upon ; 
delegates  were  chosen  everywhere;  July  12th  a  meeting  was 
called  at  Carlisle  in  the  Presbyterian  Church,  and  Attorney 
Wilson  was  made  Chairman  of  a  Committee  of  Observation 
and  Correspondence  and  also  of  a  delegation  to  the  State 
Conference  on  the  following  Friday,  the  15th;  on  that  day 
he  was  in  Philadelphia  and  was  at  work  on  the  Convention’s 
Committee  on  Resolutions;  now  was  the  time  to  bring  out 
that  paper  on  the  Legislative  Authority  of  Parliament;  he 
took  it  to  the  Bradfords,  over  at  the  old  London  Coffee 
House,  and  it  was  out  soon  after  the  17th  of  August.  His 


14 


preface  to  it  is  not  characterized  by  excitement  or  hysteria ; 
on  the  contrary,  there  is  the  superb  poise  of  the  profound 
student  and  statesman.  To  the  public,  “the  writer  submits 
his  sentiments,”  it  reads,  “with  that  respectful  deference  to 
their  judgment  which,  in  all  questions  affecting  them,  every 
individual  should  pay.”  It  was  a  courageous  act  and  bold, 
for  by  it  he  became  liable  to  trial  and  severe  punishment  in 
England.  It  was  widely  read  then  and  during  the  first 
Continental  Congress,  which  met  a  few  days  later,  on  Sep¬ 
tember  5,  at  Carpenter’s  Hall.  The  over-cautious  Assem¬ 
bly,  which  met  five  days  after  Wilson’s  preface  was  written, 
naturally  did  not  choose  him  to  that  Congress.  His  friend, 
Dickinson,  however,  took  great  pleasure  in  dining  them  at 
Fair  Hill  day  by  day,  for  neither  was  the  author  of  the 
“Farmer’s  Letters”  chosen  to  that  Congress.  After  New 
Year’s  Day,  1775,  however,  a  new  provincial  convention  met 
in  which  Wilson  made  a  powerful  plea  for  Massachusetts’ 
right  to  resist  any  change  in  her  constitution  or  charter  not 
agreed  to  by  her  legislative  body.  His  speech  reminded 
those  who  objected  to  the  revolutionary  methods  that  he  was 
standing  by  the  spirit,  not  the  forms,  of  the  Constitution. 
“Was  the  convention  of  the  Barons  at  Running  Meade,” 
said  he,  “where  the  tyranny  of  John  was  checked  and  Magna 
Charter  was  signed  authorized  by  the  Forms  of  the  Consti¬ 
tution?  Was  the  Convention-Parliament  that  recalled 
Charles  the  Second,  and  restored  the  monarchy,  authorized 
by  the  Forms  of  the  Constitution?  Was  the  convention  of 
Lords  and  Commons  that  placed  King  William  on  the 
throne,  and  secured  the  monarchy  and  liberty  likewise, 
authorized  by  the  Forms  of  the  Constitution  ?  I  cannot  con¬ 
ceal  my  emotions  of  pleasure  when  I  observe  that  the  objec¬ 
tions  of  our  adversaries  cannot  be  urged  against  us,  but  in 
common  with  those  venerable  assemblies,  whose  proceedings 
formed  such  an  accession  to  British  Liberty  and  British 
Renown.”  And  the  people  followed  him,  for  the  Assembly 
on  May  3d,  next,  made  him  Colonel  of  the  Fourth  Battalion 


i5 


of  Cumberland  County  Associators,  and  three  days  later  sent 
him  with  Franklin  and  Willing  to  the  second  Congress 
which  was  to  meet  on  the  ioth.  Indeed,  the  events  of  the 
previous  month  in  England  had  made  it  impossible  to  do 
otherwise. 

Colonel  Wilson  took  his  seat  in  Congress  five  days  later, 
just  the  day  before  Massachusetts  drafted  her  letter  asking 
for  the  counsel  of  that  body.  This  reached  the  State  House 
on  June  2,  and  the  committee  elected  to  report  on  it  were 
Rutledge,  Johnson,  Jay,  Wilson  and  Lee,  who  advised,  as 
Wilson  had  already  advocated  that  Massachusetts  owed  no 
allegiance  to  Parliament,  only  to  the  King,  and  this  was  fol¬ 
lowed  by  preparations  to  aid  her  in  preserving  her  charter. 
He  was  put  on  the  Finance  and  Indian  Affairs  committees, 
and  was  soon  in  Pittsburg  trying  to  form  a  treaty  that 
would  overcome  the  mischief  caused  by  Lord  Dunmore. 
Here  he  was  occupied  much  of  the  rest  of  the  year,  although 
he  was  re-elected  to  Congress  in  November,  and  curiously 
enough  was  placed  on  a  committee  to  consider  the  protection 
of  Virginia.  Almost  immediately,  also,  he  was  placed  on  a 
committee  to  reply  to  the  ministerial  proclamation,  that  on 
Naval  Prizes,  chairman  of  Indian  Trade  Relations,  and  by 
the  beginning  of  the  year  on  others,  among  them,  one  on  the 
Forces  Necessary  to  Defend  the  Whole  Country,  and  also  on 
an  address  to  all  the  inhabitants,  and  the  measures  for  effect¬ 
ing  a  union  with  Canada,  and  conference  with  General 
Washington  on  that  subject.  Indeed,  he  was  one  of  the 
leaders  in  plan  of  campaign,  later  the  Board  of  War,  and 
like  committees  of  the  first  order,  up  to  June,  1776,  when  the 
Declaration  of  Independence  came  up  for  consideration. 

Unfortunately,  previous  to  June  14,  the  resisting  ele¬ 
ments  in  the  Pennsylvania  Assembly  had  absolutely  for¬ 
bidden  their  delegates  in  Congress  to  agree  to  independence, 
and  Wilson  was  wise  enough  to  wait  and  at  the  same  time 
secure  a  removal  of  that  prohibition  through  his  friends 
Dickinson,  Morris,  Smith  and  others,  who  drafted  the  new 


instructions,  which  became  effective  on  June  14.  This 
course  of  Wilson’s  gave  the  radical  element  an  opportunity 
to  misrepresent  and  injure  him  with  the  people.  On  June 
20th,  Hancock,  Jefferson,  the  Adamses,  Morris  and  other 
members  of  Congress  to  the  number  of  about  a  score,  issued 
a  public  defense  of  Wilson  from  “Congress  Chambers.” 
They  stated  that  “Mr.  Wilson,  after  having  stated  the 
progress  of  the  dispute  between  Great  Britain  and  the  Colo¬ 
nies,  declared  it  to  be  his  opinion  that  the  Colonies  would 
stand  justified  before  God  and  the  world  in  declaring 
an  absolute  separation  from.  Great  Britain  forever;  and 
that  he  believed  a  majority  of  the  people  of  Pennsylvania 
were  in  favor  of  independence,  but  that  the  sense  of  the  As¬ 
sembly  (the  only  representative  body  then  existing  in  the 
Province)  as  delivered  to  him  by  their  instructions,  was 
against  the  proposition,  that  he  wished  the  question  to  be 
postponed,  because  he  had  reason  to  believe  the  people  of 
Pennsylvania  would  soon  have  an  opportunity  of  expressing 
their  sentiments  upon  this  point,  and  he  thought  the  people 
ought  to  have  an  opportunity  given  them  to  signify  their 
opinion  in  a  regular  way  upon  a  matter  of  such  importance — 
and  because  the  delegates  of  other  colonies  were  bound  by 
instructions  to  disagree  to  the  proposition,  and  he  thought  it 
right  that  the  constituents  of  these  delegates  should  also  have 
an  opportunity  of  deliberating  on  said  proposition,  and  com¬ 
municating  their  opinions  thereon  to  their  respective  repre¬ 
sentatives  in  Congress.  The  question  was  resumed  and  de¬ 
bated  the  day  but  one  after  Mr.  Wilson  delivered  these  senti¬ 
ments,  when  the  instructions  of  the  Assembly  referred  to 
were  altered  and  new  instructions  given  to  the  delegates  of 
Pennsylvania.  Mr.  Wilson  then  observed  that,  being  unre¬ 
strained,  if  the  question  was  put  he  should  vote  for  it;  but 
he  still  wished  a  determination  on  it  to  be  postponed  for  a 
short  time  until  the  deputies  of  the  people  of  Pennsylvania 
who  were  to  meet  should  give  their  explicit  opinion  upon  this 
point  so  important  and  interesting  to  themselves  and  their 


posterity;  and  also  urged  the  propriety  of  postponing  the 
question  for  the  purpose  of  giving  the  constituents  of  several 
colonies  an  opportunity  of  removing  their  respective  instruc¬ 
tions,  whereby  unanimity  would  probably  be  obtained.” 
Wilson  knew  that  the  people  were  divided  on  the  legality  of 
that  Assembly,  partly  sworn  and  partly  not  under  oath,  but 
he  also  knew  that  the  Provincial  Conference  which  was  to 
meet  on  June  18  would  call  a  Constitutional  Convention 
about  whose  legality  he,  at  least,  would  have  no  question, 
but  the  main  point  is  that  this  believer  in  the  people  wanted 
to  wait  for  the  people,  and,  he  it  was,  more  than  any  other 
man,  who  stayed  the  Declaration  until  the  people  themselves 
were  ready,  and  during  the  first  week  in  July  was  among 
those  who  most  heartily  and  courageously  signed  that  im¬ 
mortal  instrument. 

A  mighty  step  was  taken.  Heretofore  Congress  had 
been  fighting  Parliament.  Now  it  had  severed  all  relations 
to  the  British  crown,  and  they  were  an  independent  people. 
Wilson’s  calm  poise,  based  upon  constitutional  liberty  and 
the  spirit  of  the  laws,  brought  him  to  the  top  in  this  crisis, 
but  it  marked  him  as  a  power  hateful  to'  the  radical  vision¬ 
aries  and  enthusiasts  who  drew  their  inspiration  largely 
from  the  Turgot  school,  when  it  was  not  from  any  school  at 
all,  and  the  Constitutional  Convention  of  1776,  which  gath¬ 
ered  at  the  State  House  on  July  15th,  in  the  room  opposite 
Congress  Chamber,  where  James  Wilson  sat — full  of  radi¬ 
cals  as  it  was — had  no  more  use  for  James  Wilson  than  the 
Tory  Assembly  that  refused  to  send  him  to  the  First  Con¬ 
gress.  He  looked  upon  their  constitution  as  a  monster  of 
tyranny  in  keeping  with  the  proscriptive  course  under  it,  and 
both  not  a  whit  better  than  the  vicious  theories  and  actions 
of  Parliament.  And  forthwith  began  that  indiscriminate 
condemnation  of  all  who  opposed  this  Constitution.  They 
were  dubbed  Tories  and  many  were  branded  with  that  name 
whose  sole  crime  was  that  they  withstood  the  tyranny  of  the 
Constitution  of  ’76  and  the  Assembly  as  they  had  that  of 


i8 


Parliament  and  the  King.  During  the  autumn  and  winter, 
while  Wilson  was  one  of  the  busiest  men  in  Congress — one 
of  its  very  first  leaders,  as  the  Journal  abundantly  shows — 
the  storm  raged  against  Wilson  and  other  opponents  of  the 
Constitution.  The  condition  of  Pennsylvania  was  the  de¬ 
spair  of  the  whole  of  the  Colonies  and  the  Army.  On  Feb¬ 
ruary  4,  ’77,  the  storm  burst  upon  Wilson  and  the  Assembly 
did  not  re-elect  him.  “You  have  probably  heard,”  he  wrote 
St.  Clair  on  the  19th,  from  Baltimore,  where  Congress  was 
then  sitting,  “that  I  am  removed  from  the  delegation  of 
Pennsylvania.  I  retire  without  disgust;  and  with  the  con¬ 
scious  reflection  of  having  done  my  duty  to*  the  public  and  to 
the  State  which  I  represented.  On  Tuesday  next  Congress 
will  adjourn  from  this  place  to  Philadelphia.”  Wilson’s 
presence  was  absolutely  demanded  in  Congress,  however, 
and  it  is  said  that  General  Washington  went  so  far  as  to  en¬ 
treat  members  of  the  Assembly  to  return  him,  and  on  the 
General’s  birthday  they  acquiesced.  On  March  27,  Wilson 
wrote  his  friend  St.  Clair,  “I  have  resumed  my  seat  in  Con- 
.  gress.  My  reason  is,  that  if  at  any  time  I  can  be  useful  to 
my  country,  I  can  at  this.  Pennsylvania  is  in  the  greatest 
confusion;  perhaps  order  may  at  last  arise  from  it.” 

It  is,  of  course,  impossible  to  enter  into  the  details  of 
that  threatening  period  in  the  year  1777.  Wilson  was  made 
chairman  of  the  Committee  on  the  Protection  of  Philadel¬ 
phia,  and  bore  the  brunt  in  most  of  the  important  commit¬ 
tees — and  what  Herculean  tasks  were  theirs  in  those  dark 
days!  With  the  closing  in  of  the  British  toward  Philadeh 
phia,  the  Assembly  again  vented  its  wrath  on  Wilson,  and  on 
September  14th  superseded  him  in  Congress  by  his  fellow 
Master  of  Arts  of  years  before,  Joseph  Reed.  Wilson  took 
to  the  field  as  colonel  of  militia  in  New  Jersey,  and  after 
the  fall  of  Philadelphia  he  is  said  to  have  been  for  a  time 
in  Annapolis.  If  so,  it  was  merely  a  temporary  matter,  for 
in  ’78,  with  the  evacuation  of  Philadelphia,  he  took  up  his 
permanent  residence  there  in  a  house  on  the  southwest  cor- 


' 

- 


■ 


i 


19 

ner  of  Third  and  Walnut  Streets,  and  became  a  private  citi¬ 
zen  again,  if  such  activities  as  his  could  be  called  private. 
He  became  a  trustee  of  the  College  of  Philadelphia  and  took 
up  the  work  of  the  courts  again  and  defended  the  rights  of 
those,  like  Morris  and  others,  who  were  persecuted  as  Tories, 
merely  because  they  opposed  the  Constitution  of  1 776.  His 
very  presence  was  a  rebuke  to  the  proscriptive  course  of  the 
State  Government  and  its  followers,  and  they  feared  his 
power  as  they  did  that  of  no  other  man.  During  this  year 
he  appeared  in  the  Chester  County  election  case,  later  in  the 
proprietary-property  case,  and  still  later  in  the  college  resto¬ 
ration  case,  upholding  the  spirit  of  the  laws,  and  in  each 
instance,  with  profound  insight,  exposing  the  unusual  prin¬ 
ciples  that  were  then  governing  in  Pennsylvania,  so  far  as 
law  and  liberty  were  concerned.  The  French  alliance  of  the 
previous  February  and  the  army’s  victories  gave  practical 
assurance  that  the  success  of  the  Revolution  was  only  a 
matter  of  time,  and  Wilson  was  already  meditating  on  plans 
of  reconstruction  in  all  walks  of  life.  Early  in  ’79  the 
French  government  sought  his  services  to  guide  her  legal 
relations  in  this  confederation  chaos.  He  commanded  the 
highest  prices  of  any  lawyer,  and  when  he  stated  them  and 
the  French  objected  to  them,  he  offered  his  services  free  of 
cost  out  of  regard  to  France’s  friendship  to  his  country. 
Later  he  was  presented  a  “princely  sum.”  He  wasn’t  sim¬ 
ply  a  lawyer  in  these  cases,  but  a  constructor ;  he  mapped  out 
a  full  consular  system  for  France  in  America — in  short  he 
was  doing  as  far-reaching  things  out  of  Congress  as  ever 
he  did  within  it.  During  1779  he  and  others  organized  the 
Republican  Society.  During  ’79  it  was,  too,  that  he  began 
actively  taking  up  the  development  of  the  country,  not  only 
in  Pennsylvania  and  other  States  of  the  East,  but  in  the 
vast  new  territories  of  the  West,  over  which  the  States  were 
quarreling  but  which  was  bound  to  become  National  domain. 
He  was  an  owner  of  the  combined  Illinois  and  Oubache 
Land  Companies,  and  later  became  their  attorney  and  presi- 


20 


dent,  and  from  this  time  until  his  death  it  is  doubtful  if  there 
was  a  greater  individual  land  owner  in  America.  Two 
years  later  he  owned  300  shares  in  the  Indiana  Land  Com¬ 
pany,  whose  bounds  covered  a  good  part  of  two  great  States, 
and  ran  up  to  “the  Chicagou  or  Garlick  River,”  and  gave  a 
name  to  the  Hoosier  State  years  later.  Within  a  dozen 
years  or  so  he  had  sold  a  half  million  acres  to  the  Holland 
Land  Company  and  bought  over  4,000,000  acres  scattered  in 
all  parts  of  the  South  from  the  Potomac  and  Ohio1  to  the 
western  boundary  at  the  “Great  River.”  His  papers  show 
that  he  was  not  merely  a  speculator,  but,  as  he  put  it  to  cer¬ 
tain  Dutch  capitalists,  proposed  to  develop  our  need  with 
their  abundance  of  men  and  money.  He  outlined  to  them  a 
plan  of  immigration  and  development  imperial  in  its  scope. 
He  had  the  bold  vision  of  the  men  of  1861  who  planned  the 
great  Pacific  railroad.  He  established  mills  and  factories 
and  around  one  of  them  in  Northampton  County  grew  up  a 
settlement  called  Wilsonville. 

But  of  course  all  of  this  was  not  done  in  1779,  but  that 
potent  spirit  and  outlook  was  there  in  '79,  and  when  affairs 
went  wrong  in  Pennsylvania  it  was  liable  to  be  charged  to 
Wilson  and  Morris.  The  depreciation  of  the  currency  and 
the  various  panicky  conditions  of  that  year  culminated  in 
October,  on  the  4th  day  thereof,  in  a  mob  of  militia  starting 
out  to  find  some  of  the  personal  causes,  as  they  believed,  of 
all  their  woe,  and  Wilson’s  friends,  hearing  of  it,  went  down 
to  Third  and  Walnut  to  help  protect  him.  Fortunately,  the 
skirmish  that  followed,  and  which  has  been  so  vividly  de¬ 
scribed  by  the  late  Frederick  D.  Stone,  was  stopped  by  Presi¬ 
dent  Reed  and  the  City  Troop,  with  slight  loss  of  life,  but 
the  event  gave  the  residence  the  title  of  “Fort  Wilson,”  and 
some  years  later  he  left  it  and  located  among  the  distin¬ 
guished  mansions  on  Market  Street,  in  the  region  of  Sixth. 

In  the  wretched  financial  situation  of  1780  Wilson, 
Morris  and  others  conceived  a  banking  company  to  finance 
the  army,  Morris  subscribing  £10,000  and  Wilson  heading 


21 


the  £5000  list,  Congress  hailing  their  patriotism  with  joy. 
This  led  to  Morris  heading  the  financial  side  of  the  confede¬ 
ration,  and  Wilson’s  papers  show  that  from  that  time  for¬ 
ward  he  was  both  legal  constructor  and  defender  of  the 
Bank  of  Pennsylvania  and  the  great  Bank  of  North 
America  which  were  their  instruments,  and  was  Morris’s 
constant  legal  counselor.  It  was  at  this  time  that  General 
Washington  wanted  his  nephew,  Bushrod,  to  study  law  with 
Wilson,  whose  fee  was  higher  than  that  of  any  other  lawyer, 
in  consequence  of  which  young  Bushrod  wanted  his  uncle  to 
try  some  one  else,  but  the  General  wanted  Wilson,  and  paid 
the  fee,  as  the  young  man  afterwards  described  the  affair,  in 
his  old  age.  And  this  banking  aid  of  the  army  converted 
the  masses  in  Pennsylvania  from  enmity  to  loyalty  to  Wil¬ 
son,  and  late  in  1782  he  was  sent  back  to  Congress  to  aid  in 
bringing  order  out  of  chaos ;  not  only  so,  but  with  the  aid  of 
the  Republican  Society  which  he  was  active  in  organizing  to 
reform  the  vicious  Constitution  of  ’76,  three  years  before, 
this  banking  movement  brought  Wilson’s  party  into  increas¬ 
ing  control  of  the  State  government.  In  its  prospectus, 
attributed  to  him,  they  said :  “While  we  oppose  tyranny 
from  a  foreign  power,  we  should  think  ourselves  lost  to 
every  sense  of  duty  and  of  shame  were  we  tamely  to  acqui¬ 
esce  in  a  system  of  government  which,  in  our  opinion,  will 
introduce  the  same  monster,  so  destructive  of  humanity, 
among  ourselves.  Such  a  system  we  conceive  the  Constitu¬ 
tion  framed  by  the  late  convention  to  be.”  But  Wilson  was 
wise,  and  not  long  after  his  return  to  Congress  his  party 
were  masters  of  the  Assembly  and  he  was  studying  the  sci¬ 
ence  of  government  daily.  It  was  at  this  time,  in  1782,  that 
Marquis  de  Chastellux,  a  member  of  the  French  Academy 
and  a  Major  General  under  Rochambeau,  wrote  of  a  visit 
with  Wilson,  “a  celebrated  lawyer,”  said  he,  “and  an  author 
of  several  pamphlets  on  the  present  affairs.  He  has  in  his 
library  all  our  best  authors  on  public  law  and  jurisprudence; 
the  works  of  President  Montesquieu  and  of  Chancellor 


22 


d’Aquessau  hold  the  first  rank  among  them,  and  he  makes 
them  his  daily  study.”  The  translator  adds  in  a  foot-note 
that  Wilson  “is  making  a  fortune  rapidly  in  the  profession 
of  the  law  at  Philadelphia,”  and  is  “a  man  of  real  abilities,* 
and  Mr.  Morris’s  intimate  friend  and  coadjutor  in  his 
aristocratic  plans.” 

The  Revolution  was  over.  Wilson  was  forty  years  old 
only.  He  was  made  Brigadier-General  of  militia  in  Penn¬ 
sylvania  to  aid  in  putting  it  on  a  sound  basis.  He  was  made 
leading  counsel  to  defend  Pennsylvania’s  claims  to  her 
northern  territory  against  Connecticut  in  a  special  court  at 
Trenton,  and  succeeded.  He  was  a  member  of  Congress 
from  ’83  to  ’87,  except  in  ’84,  when  the  land  companies’ 
claims,  in  which  he  was  interested,  were  before  it ;  but  he 
attended  only  at  times  of  special  importance.  Congress 
was  proving  its  organic  inefficiency.  Its  proceedings  at  this 
time  require  very  thin  volumes.  Strong  men  were  busy  re¬ 
storing  the  wreck  of  the  long  war.  A  new  population  was 
pouring  into  the  vast  land  of  opportunity.  The  war  which 
held  the  people  together  as  Americans  had  closed,  to  relax 
the  tie  and  make  them  citizens  of  bickering  States.  The 
confederation  was  powerless.  The  loosened  tie  of  nation¬ 
ality  was  as  an  oppressive  nightmare  to  the  most  thoughtful. 
As  commerce  was  resumed  trade  relations  became  chaotic 
and  exasperating.  Attempts  were  repeatedly  made  to  se¬ 
cure  uniformity,  regulation  and  revenue  by  vesting  in  Con¬ 
gress  powers  of  establishing  impost  duties,  but  in  vain. 
Finally,  in  January,  ’86,  Virginia  began  agitation  for  a  trade 
convention  of  the  States,  but  even  she  did  not  send  out  her 
call  until  July.  It  was  during  this  agitation  that,  on  April 
14,  one  of  the  great  sorrows  of  his  life  came  to  James  Wil¬ 
son  in  the  loss  of  his  wife,  a  bereavement  all  the  more 
pathetic  since  it  left  a  family  of  six  children,  the  oldest  of 
which  was  but  fourteen  and  the  youngest  an  infant.  It  was 
over  seven  years  after  the  mound  was  made  in  Christ 
Church  yard  before  he  found  himself  ready  to  fill  that 


23 


vacancy  in  his  home.  Thus  it  was  that  James  Wilson  was 
in  the  midst  of  a  deep  sorrow  when  representatives  of  five 
States  met  in  the  trade  convention  at  Annapolis  on  Septem¬ 
ber  ii,  1786,  when  two  young  men  from  Virginia  and  New 
York  were  influential  in  recommending  that  a  fuller  and 
more  serious  convention  be  held  at  Philadelphia  on  the  sec¬ 
ond  Monday  of  May,  next  following,  at  the  State  House, 
to  consider  serious  defects  in  what  they  called  “the  Federal 
Government.” 

During  the  winter  of  ’86-7  a  few  choice  spirits  grasped 
the  national  idea  in  a  vague  form,  and  the  momentous 
project  drew  from  all  the  States  their  soundest  and  broadest 
men  to  the  Philadelphia  State  House  square  like  a  magnet. 
McMaster  has  happily  described  them  to  us.  During  the 
ten  days  from  May  14  a  quorum  had  gathered,  and  on  May 
30,  after  five  days  of  deliberation,  the  Gazette  gave  as  its 
earnest  conviction  that  “Perhaps  no  age  or  country  ever  saw 
more  wisdom,  patriotism  and  probity  united  in  a  single  As¬ 
sembly  than  we  now  behold  in  the  convention  of  the  States/’ 
And  after  three  months  the  same  journal  again  affirmed 
that  “Such  a  body  of  enlightened  and  honest  men  perhaps 
never  before  met  for  political  purposes  in  any  country  upon 
the  face  of  the  earth” — a  judgment  that  time  has  only 
tended  to  confirm  and  reiterate  with  even  more  positive  con¬ 
viction.  If  ever  a  body  of  men  in  the  history  of  the  world 
was  worthy  to  be  called  a  school  of  constructive  political 
and  governmental  science,  that  body  was  this  convention  in 
the  old  east  room  of  the  State  House.  They  were  not  mere 
adapters  of  historical  and  political  writers  like  Montesquieu ; 
they  were  scientific  creators,  thinking  through  the  problem 
themselves  in  a  new  field.  Some  came  to  it  from  the 
soldier’s  or  citizen’s  point  of  view ;  some  came  from  the  con¬ 
structive  statesman’s  viewpoint  or  that  of  the  practical  stu¬ 
dent  of  politics;  but,  fortunately  for  them  and  for  us,  one 
came  to  it  from  the  experience  of  the  most  learned  student 
of  history  and  law,  and  as  a  scientist  in  politics.  James 


24 


Wilson  “was  above  all  a  political  scientist,”  says  A.  C.  Mc¬ 
Laughlin,  the  distinguished  historian  of  Ann  Arbor  and 
Carnegie  Institution,  in  a  scholarly  estimate  of  him  in  the 
Political  Science  Quarterly  for  March,  1897 — probably  the 
ablest  estimate  of  Wilson  yet  written;  “he  had  grasped 
firmly  the  teachings  of  the  past  so  far  as  they  disclosed  the 
nature  and  organization  of  the  State  and  the  safest  prin¬ 
ciples  of  judicious  government.  He  was  a  student  of  his¬ 
tory,  and  his  study  had  brought  him  organized  knowledge. 
He  was  not  a  master  of  the  art  of  politics,  but  he  knew  with 
scientific  accuracy  the  fundamentals  of  statecraft.  He  was 
suited,  above  all  else,  to  share  in  the  building  of  a  new  State 
and  to  labor  as  the  architect  of  a  new  government.” 

The  operation  of  the  convention  was  amusingly  like  any 
one  of  multitudes  of  gatherings  for  organization  so  charac¬ 
teristic  of  Americans.  The  Virginians  presented  some  reso¬ 
lutions  embodying  some  of  the  main  points  of  what  they 
thought  ought  to  be  carried,  and  others  tried  an  actual  draft 
of  a  new  Constitution.  Some,  with  nervous  anxiety  and 
timidity,  wanted  the  old  articles  of  confederation  amended. 
Wilson  was  more  concerned  with  the  settlement  of  some 
great  principles  than  details  and  mechanism;  not  as  a  the¬ 
orist,  either,  but  as  “the  most  learned  civilian,”  as  Bancroft 
calls  him,  with  his  conclusions  based  on  scientific  deduc¬ 
tions.  His  great  principles,  like  the  decalogue,  have  now 
become  commonplaces  to  us  from  long  familiarity,  but  they 
were  absolutely  novel  to  his  followers  and  the  history  of  the 
past.  Let  us  see  what  some  of  them  were:  He  believed 
the  American  people  were  a  Nation,  not  a  union  of  States; 
that  they  had  become  free  collectively,  not  individually,  and 
should  form  a  government  that  should  be  an  exact  transcript 
of  their  society.  In  consequence,  he  believed  supremely  in  the 
people — trusted  them  absolutely,  more  than  the  convention 
itself  did,  or  more  than  his  times  did.  We  are  not  yet 
abreast  of  him  in  his  trust  in  the  people,  although  we  are 
rapidly  growing  in  that  direction.  Consequently  he  was 


25 


there  not  to  consider  the  old  articles  at  all,  but  to  create  a 
National  government,  resting,  not  upon  States,  although 
fully  recognizing  them,  but  on  the  people  directly.  He  was 
the  first  to  clearly  conceive  our  great  modern  idea  of  local, 
State  and  National  government,  each  being  the  creature  of 
the  people,  responsible  to  them,  and  resting  on  them.  Not 
even  Madison,  whom  Bancroft  calls  “the  most  careful  states¬ 
man  in  the  convention,”  grasped  the  idea  as  Wilson  did,  and 
the  evidence  of  general  confusion  on  this  point  in  the  minds 
of  this  body  reveals,  more  than  anything  else,  the  century  in 
which  they  lived,  and  the  peculiar  modernity  of  the  views 
of  Wilson.  This  was  the  secret  of  the  first  great  struggle  of 
the  convention,  and,  indeed,  of  every  struggle  of  great  mo¬ 
ment  during  the  entire  sittings  of  that  body.  This  it  was 
which  was  the  most  characteristic  product  of  this  distin¬ 
guished  body. 

Montesquieu  and  others  had  long  observed  the  scientific 
nature  of  distinctly  separate  executive,  legislative  and  judi¬ 
ciary  branches  and  checks  and  balances  in  government,  as 
illustrated  in  some  degree  in  the  British  Constitution.  There 
was  not  much  objection  to  this  idea,  but  even  in  this  matter 
Wilson  was  easily  the  most  influential  in  determining  the 
nature  of  each.  He  it  was  who  insisted  on  the  single  execu¬ 
tive  elected  by  electors  of  the  people.  He  was  on  the  com¬ 
mittee  which  itself  practically  created  the  judiciary  depart¬ 
ment.  But  his  great  principle  came  to  the  surface  in  the 
greatest  crisis,  the  climax  of  the  convention,  when  he  applied 
it  to  the  legislative  branch,  which  the  best  thought  of  the 
day  had  practically  settled  should  be  bi-cameral — namely, 
that  both  houses  of  Congress  should  be  responsible  to  the 
people  and  elected  by  them.  No  question  precipitated  a 
crisis  so  nearly  an  approach  to  rupture  as  this,  which  was 
forced  upon  the  convention  by  the  small  States  and  sup¬ 
ported  by  those  localists  who  failed  to  grasp  Wilson’s  idea 
that  the  State  was  as  safe  as  the  Nation,  since  both  were  the 
people’s  permanent  creation  and  possession.  Wilson  pro- 


26 


posed  the  election  of  both  houses  by  the  people  and  suc¬ 
ceeded  with  the  Lower  House,  but  finally  yielded  to  Madi¬ 
son's  “carefulness”  in  surrendering  the  election  of  the  Sen¬ 
ate  to  the  States.  Wilson  always  felt  this  an  anomaly  in 
government,  and  no  student  of  constitutional  development 
can  read  the  attitude  of  the  people  toward  this  question  to¬ 
day  and  not  be  startled  to  see  how  fast  they  are  traveling 
toward  Wilson's  principles.  Wilson,  however,  accepted  the 
compromise  with  loyalty,  but  always  was  apprehensive  of 
the  ideas  of  State  sovereignty  that  it  carried  with  it  as  con¬ 
taining  a  future  struggle  and  indicating  where  the  line  of 
cleavage  would  appear. 

These  were  the  great  questions  in  which  Wilson's  coun¬ 
sel  loomed  high  in  the  minds  of  the  convention.  He  did  not 
take  so  much  interest  in  working  out  the  minor  problems. 
In  the  matter  of  check  on  legislation,  he  wanted  the  Execu¬ 
tive  and  Judiciary  to  both  have  a  negative  on  the  passage  of 
laws,  anticipating  Marshall  and  the  modern  practice  of  the 
judiciary’s  power  to  determine  a  law’s  constitutionality. 
He  wanted  the  constitutionality  determined  before 
its  passage  so  far  as  possible.  With  characteristic 
logic  he  applied  his  combined  principles  of  nation¬ 
alism  and  democracy  to  the  end.  There  is  nothing 
more  modern  than  his  defence  of  the  rights  of  the 
Western  settlements  to  equality.  “The  majority  of  the  peo¬ 
ple,”  said  he,  on  the  very  day  that  Congress  passed  the  great 
ordinance  of  1787,  creating  the  Northwest  Territory,  “the 
majority  of  the  people,  wherever  found,  ought  in  all  ques¬ 
tions  to  govern  the  minority.  If  the  interior  country  shall 
acquire  this  majority,  it  will  not  only  have  the  right,  but 
will  avail  itself  of  it,  whether  we  will  or  no.”  One  other 
point  may  be  noticed  as  characteristic,  namely,  his  insistence 
that  the  finished  Constitution  should  be  submitted  to  the' 
people  in  convention,  and  not  to  the  State  legislatures,  a 
proposal  that  prevailed.  With  these  points,  and  others, 
settled,  Wilson  was,  of  course,  placed  on  the  committee  to» 


27 


draft  them  into  constitutional  form,  and  the  Historical  So¬ 
ciety  of  Pennsylvania  now  has  among  its  treasures  two  suc¬ 
cessive  drafts  of  that  instrument  in  committee  in  his  own 
hand. 

The  convention  rose  on  September  17th,  and  about  ten 
days  later  Congress  had  referred  the  new  instrument  to  the 
people’s  conventions  of  the  several  States.  The  objectors 
both  within  and  without  the  convention,  especially  the  latter 
in  Pennsylvania,  at  once  tried  to  arouse  alarms,  and  at  the 
request  of  many  eminent  citizens  Wilson,  whom  Washing¬ 
ton  then  characterized  as  “as  able,  candid  and  honest  a  mem¬ 
ber  as  was  in  the  convention,”  addressed  a  mass  meeting  at 
the  State  House  on  October  6th,  replying  to  the  false  insinu¬ 
ations  :  On  the  omission  of  a  bill  of  rights,  he  stated  the 
great  difference  between  State  and  National  constitutions. 
“In  the  former  case,”  said  he,  “everything  which  is  not  re¬ 
served  is  given,  but  in  the  latter  the  reverse  of  the  proposi¬ 
tion  prevails,  and  everything  which  is  not  given  is  reserved.” 
To  the  objection  that  trial  by  jury  was  not  provided  for,  he 
said  it  was  impossible  to  provide  for  it  other  than  to  trust 
the  court  regulations  to  the  people’s  representatives  in  Con¬ 
gress.  To  those  who  objected  to  the  toleration  of  a  stand¬ 
ing  army,  he  showed  that  the  confederation  already  pro¬ 
vided  for  it  and  no  nation  on  earth  was  without  one.  To  the 
fear  of  an  aristocracy  in  the  Senate,  he  showed  that  the  Sen¬ 
ate  was  helpless  without  the  consent  of  their  representa¬ 
tives  and  their  chief  executive  ;  besides,  said  he,  “the  Senate 
is  a  necessary  compromise — for  my  part,  my  admiration  can 
only  be  equaled  by  my  astonishment,  in  beholding  so  perfect 
a  system  formed  from  such  heterogeneous  materials.”  To 
the  objectors  that  it  was  designed  to  reduce  the  States  to 
mere  corporations,  he  showed  that  a  President  could  not  be 
elected  except  there  be  a  State  legislature  ;  there  could  be 
no  Senate  except  there  be  a  State  legislature  ;  and  the 
House  itself  could  not  exist  without  the  State  legislature, 
for  it  was  to  be  elected  in  the  same  way  as  the  most  numer- 


28 


ous  branch  of  the  State  body.  To  objectors  to  the  power  of 
direct  taxation,  he  predicted  that  the  great  revenue  of  the 
nation  would  always  be  by  impost  duties,  but  emergencies 

required  the  power  to  preserve  the  credit  of  the  Union — a 

/ 

point  the  Pennsylvanians  were  quick  to  understand  just 
then.  He  finally  closed  with  reflections  on  opposition  that 
must  be  expected,  and  that  it  was  a  human  instrument, 
although  with  the  seeds  of  reformation  within  itself.  “I 
will  confess,”  said  he,  “that  I  am  not  a  blind  admirer  of  this 
plan  of  government,  and  that  there  are  some  parts  of  it 
which,  if  my  wish  prevailed,  would  certainly  have  been 
altered.  But,  when  I  reflect  how  widely  men  differ  in  their 
opinions,  and  that  every  man  (and  the  observation  applies 
likewise  to  every  State)  has  an  equal  pretension  to  assert 
his  own,  I  am  satisfied  that  anything  nearer  to  perfection 
could  not  have  been  accomplished.  Regarding  it,  then,  in 
every  point  of  view,  and  with  a  candid  and  disinterested 
mind,  I  am  bold  to  assert  that  it  is  the  best  form  of  govern¬ 
ment  which  has  ever  been  offered  to  the  w\orldfn  This 
speech  was  printed  in  the  Gazette ,  and  Washington  and 
others  secured  its  reprint  in  Virginia  and  New  York. 

By  the  7th  of  December  Delaware  had  ratified  the  Con¬ 
stitution,  while  Pennsylvania  was  considering  it,  only  be¬ 
cause  the  minority  in  the  Assembly  tried  to  block  reference 
to  the  people  by  absenting  themselves.  As  but  two  were 
needed,  however,  they  were  captured,  and  on  the  third  Tues¬ 
day  in  November  a  convention  was  considering  Wilson’s 
presentation  of  the  matter  and  ratified  the  Constitution  five 
days  after  Delaware.  This  presentation  attracted  attention 
in  both  Europe  and  America  years  afterwards.  It  is  im¬ 
possible  to  treat  it  fully  here.  “Government,  indeed,”  said 
he,  “taken  as  a  science,  may  yet  be  considered  in  its  infancy.” 
Again,  “America  presents  the  first  instance  of  a  people  as¬ 
sembled  to  weigh  deliberately  and  calmly,  and  to  decide 
leisurely  and  precisely,  upon  the  form  of  government  by 


1  Italics  by  the  author. 


29 


which  they  will  bind  themselves  and  their  posterity.”  In 
showing  that  the  great  law  of  representation,  the  vital 
principle  of  government,  was  even  in  the  British  Constitu¬ 
tion,  “confined,”  as  he  said,  “to  a  narrow  corner,”  he  added, 
“the  world  has  left  to  America  the  glory  and  happiness  of 
forming  a  government  where  representation  shall  at  once 
supply  the  basis  and  cement  of  the  superstructure.”  On  the 
location  of  supreme  authority,  he  showed  that,  unlike 
Britain,  where  it  lies  in  Parliament,  in  America  it  did  not 
even  reside  in  constitutions,  although  that  was  nearer  the 
fact,  for  here,  “in  truth,  it  remains  and  flourishes  with  the 
people.”  “That  the  supreme  power,  therefore,  should  be 
vested  in  the  people  is,  in  my  judgment,  the  great  panacea  of 
human  politics.”  “But,”  said  he,  in  closing,  “when  we  take 
an  extensive  and  accurate  view  of  the  streams  of  power  that 
appear  through  this  great  and  comprehensive  plan,  when  we 
contemplate  the  variety  of  their  directions,  the  force  and 
dignity  of  their  currents,  when  we  behold  them  intersecting, 
embracing  and  surrounding  the  vast  possessions  and  inter¬ 
ests  of  the  continent,  and  when  we  see  them  distributing  on 
all  hands  beauty,  energy  and  riches,  still,  however  numerous 
and  wide  their  courses,  however  diversified  and  remote  the 
blessings  they  define,  we  shall  be  able  to  trace  them  all  to  one 
great  and  noble  source,  the  People .” 

It  was  in  this  discussion  that,  on  October  26,  ’87  (not 
’88,  as  Bryce  has  it;  that  was  the  year  of  publication),  Wil¬ 
son  said:  “To  control  the  power  and  conduct  of  the  Leg¬ 
islature,  by  an  overruling  Constitution,  was  an  improve¬ 
ment  in  the  science  and  practice  of  government,  reserved  to 
the  American  States.”  This  idea  seemed  not  to  be  under¬ 
stood  in  Britain.  “The  British  Constitution  is  just  what 
the  Parliament  pleases.”  “The  first  statesman  who  re¬ 
marked  this,”  says  Bryce,  “seems  to1  have  been  James  Wil¬ 
son,”  “one  of  the  luminaries  of  the  time  to  whom”  “subse¬ 
quent  generations  of  Americans  have  failed  to  do  full  jus¬ 
tice.”  His  speeches  “display  an  amplitude  and  profundity 


30 


of  view  in  matters  of  constitutional  theory  which  place  him 
in  the  front  rank  of  the  political  thinkers  of  his  age.”  It 
was  in  this  discussion  that  he  said,  in  one  of  his  closing  ap¬ 
peals  :  “By  adopting  this  system  we  shall  probably  lay  a 
foundation  for  erecting  temples  of  liberty  in  every  part  of 
the  earth.  It  has  been  thought  by  many  that  on  the  success 
of  the  struggle  America  has  made  for  freedom  will  depend 
the  exertions  of  the  brave  and  enlightened  of  other  nations. 
The  advantages  resulting  from  this  system  will  not  be  con¬ 
fined  to  the  United  States;  it  will  draw  from  Europe  many 
worthy  characters,  who  pant  for  the  enjoyment  of  freedom. 
It  will  induce  princes,  in  order  to  preserve  their  subjects,  to 
restore  to  them  a  portion  of  that  liberty  of  which  they  have 
for  so  many  ages  been  deprived.  It  will  be  subservient  to 
the  great  designs  of  Providence,  with  regard  to  this  globe, 
in  the  multiplication  of  mankind,  their  improvement  in 
knowledge  and  their  advancement  in  happiness.”  It  was  in 
connection  with  the  consideration  of  this  great  presentation 
by  Wilson  that  Justice  Harlan,  of  our  Supreme  Court,  re¬ 
ferred  to  them  as  having  been  characterized  as  “the  most 
comprehensive  and  luminous  commentaries  on  the  Constitu¬ 
tion  that  have  come  down  from  that  period ;”  that  no  one  of 
that  body  who  made  this  instrument,  “the  wisest  assemblage 
of  public  servants  that  ever  convened  at  any  time  in  the  his¬ 
tory  of  the  world,”  no  one  of  them  was  “wiser  than  James 
Wilson,”  who  was  “in  the  highest  and  best  sense  a  great 
lawyer”  and  “a  master  in  the  science  of  government.”  It 
is  in  a  similar  consideration,  too,  that  Bancroft  refers  to  “the 
technical  knowledge,  the  comprehensive  grasp  and  the  force 
of  argument  of  this  great  man.” 

The  present  speaker  seldom  deals  in  historical  esti¬ 
mates,  but  prefers  rather  to  lay  before  his  readers  the  ma¬ 
terial  upon  which  to  base  their  own.  The  greatness  of 
James  Wilson,  however,  so  well  attested  as  it  has  been  by 
many  an  authority,  leads  him  to  offer  one  in  this  instance 
with  great  confidence.  What  Thomas  Jefferson  was  to  the 


31 


Declaration  of  Independence,  what  John  Paul  Jones  was  to 
the  Navy,  and  George  Washington  to  the  Army;  what 
Robert  Morris  was  to  the  finance  of  the  Revolution,  and 
Franklin  to  its  diplomacy,  that,  in  the  fullest  measure, 
James  Wilson  was  to  the  Constitution  of  the  United  States. 

By  July  4,  ’88,  eight  other  States  had  joined  Delaware 
and  Pennsylvania  in  ratifying  the  Constitution,  and  the 
whole  land  was  ablaze  with  enthusiasm.  Philadelphia 
streets  were  in  brilliant  array  with  procession,  and  the  river 
was  gay  with  ten  vessels  decorated  to  represent  the  ten 
States.  And  who  but  James  Wilson  should  voice  the  re¬ 
joicing  in  a  public  address?  He  met  the  occasion  with  like 
spirit,  interpreting  and  illuminating  their  great  symbolical 
procession,  in  which  Justices  of  the  Supreme  Court  were  not 
ashamed  to  sit  in  state  in  sections  of  the  pageantry  emblem¬ 
atic  of  the  great  new  fundamental  law.  Near  the  close  of  his 
address,  he  exclaimed  :  “I  do  not  believe  that  the  Constitu¬ 
tion  was  the  offspring  of  inspiration,  but  I  am  perfectly 
satisfied  that  the  union  of  the  States,  in  its  form  and  adop¬ 
tion,  is  as  much  the  work  of  Divine  Providence  as  any  of 
the  miracles  recorded  in  the  Old  and  New  Testaments  were 
the  effect  of  a  Divine  power.  ’Tis  done !  We  have  become 
a  nation.  America  has  ceased  to  be  the  only  power  in  the 
world  that  has  derived  no  benefit  from  her  declaration  of 
independence.”  Two  days  before  this  event,  the  old  Con¬ 
gress  provided  for  the  election  under  the  new  government 
in  January,  ’89,  and  by  April  30th  the  Executive  and  Legis¬ 
lative  branches  of  National  Government  were  instituted. 
During  the  summer  the  matter  of  the  Supreme  Court  occu¬ 
pied  President  Washington’s  most  serious  consideration. 
As  Carson  has  shown  in  his  history  of  that  court,  Wilson 
was  thought  of  among  some  of  the  leading  men  for  the 
Chief  Justiceship,  but  as  the  President  wished  the  Minister 
to  France,  Mr.  Jefferson,  to  be  Secretary  of  State,  when 
Mr.  Jay,  of  New  York,  was  practically  in  that  latter  office 
under  the  old  Congress,  there  was  abundant  reason  for  giv- 


32 


ing  Mr.  Jay  the  highest  judicial  place.  On  the  29th  of 
September  a  commission  as  Justice  was  issued  to  Mr.  Wil¬ 
son,  and  the  following  day  Washington  wrote  him  that  he 
was  placing  on  this  bench  “the  Chief  Pillar  upon  which  our 
government  must  rest/’  to  use  his  own  words,  “such  men 
as  I  conceive  would  give  dignity  and  lustre  to  our  national 
character,”  and  counted  on  Wilson’s  love  of  country  and 
general  welfare  to  make  his  acceptance  of  the  office  certain. 
Five  days  later  Wilson  took  the  oath  of  office  at  the  hands 
of  the  Mayor  of  Philadelphia,  Samuel  Powell,  and  on  the 
18th  of  October  Justice  Wilson  reported  his  acceptance  and 
legal  qualification  to  the  President. 

Scarcely  more  than  a  month  later,  namely,  on  Novem¬ 
ber  24th,  he  was  sitting  as  a  member  of  the  State  Constitu¬ 
tional  Convention,  which  had  been  provided  for  almost  im¬ 
mediately  after  the  new  National  Government  began  to  exist 
at  New  York,  and  was  now  able  to  displace  the  hated  Con¬ 
stitution  of  ’76  with  one  based  upon  the  same  principles  as 
the  new  National  one.  This  was  Wilson’s  last  constitu¬ 
tional  work,  and  it  was  no  easy  task,  for  almost  a  year  passed 
before  the  convention  adjourned.  With  characteristic  vigor 
he  devoted  himself  to  the  vital  parts  of  the  instrument,  and 
his  argument  011  the  last  day  of  ’89  against  Mr.  Lewis’s  plan 
to  have  the  Senate  elected  by  electors,  as  in  Maryland,  was 
the  climax  in  the  convention.  “By  this  plan,”  said  he,  “I 
am  now  called  upon  to  delegate  this  trust” — of  personally 
choosing  representatives,  a  trust  whose  magnitude  he  had 
just  described — “delegate  this  trust  in  a  manner,  and  to 
transfer  it  to  a  distance,  which  I  have  never  experienced  be¬ 
fore.  I  am  called  upon,  not  to  appoint  legislators  of  my 
own  choice,  but  to  empower  others  to  appoint  whomsoever 
they  shall  think  proper,  to  be  legislators  over  me,  and  over 
those  nearest  to  me  in  the  different  relations  of  life.  I  am 
called  upon  to  do  this  not  only  for  myself,  but  for  thousands 
of  my  constituents,  who  have  confided  to  me  their  interests 
and  rights  in  this  convention.  I  am  called  upon  to  do  this 


33 


for  my  constituents  and  for  myself,  for  the  avowed  purpose 
of  introducing  a  choice,  different  from  that  which  they  or  I 
would  make.  I  say  different,  because  if  the  people  and  the 
electors  would  choose  the  same  Senators,  there  cannot  be 
even  a  shadow  of  pretence  for  acting  by  the  nugatory  inter¬ 
vention  of  electors.”  This  powerful  address  was  again  in 
line  with  Wilson’s  great  trust  in  the  people,  and  they  must 
have  beheld,  with  amusement,  at  their  own  expense,  this 
man  whom  they  were  accustomed  to*  dub  an  “aristocrat” 
enacting  this  role.  The  result  is  well  known — Wilson  gave 
another  constitution  the  stamp  of  democracy.  It  may  be 
added  that  the  original  address  is  also  among  the  treasures 
of  the  Historical  Society  of  Pennsylvania. 

His  attendance  on  the  convention  was  interrupted  a 
month  later  by  the  first  meeting  of  the  National  Supreme 
Court  in  the  Exchange  Building  in  New  York,  but  only  for 
a  brief  period.  He  went  on  his  first  circuit  in  the  spring. 
During  the  summer  vacation,  however,  another  interesting 
event  demanded  his  public  services  in  the  metropolis  and 
capital  of  the  new  Nation.  A  brilliant  and  learned  young 
member  of  the  convention,  Charles  Smith,  also  a  lawyer, 
the  favorite  son  of  the  Provost  of  the  College  of  Philadel¬ 
phia,  and  prompted  possibly  by  his  ambitious  father,  con¬ 
ceived  the  idea  of  instituting  a  law  school  in  that  institution, 
and  applied  to  the  trustees.  Messrs.  Shippen  and  Hare  and 
Justice  Wilson  were  made  a  committee  to>  consider  the  mat¬ 
ter,  and  it  was  determined  that  the  college  ought,  by  all 
means,  to  enter  upon,  the  proper  exposition  of  the  new 
fundamental  law  in  both  State  and  Nation,  in  this  seat  of 
learning  at  the  State  and  National  Capital.  Here  was  un¬ 
doubtedly  a  great  opportunity  for  a  much  needed  exposition 
and  defence  of  the  new  sources  of  law  in  State  and  Nation, 
and  it  was  so  instantly  recognized  that  no  one  was  so  fit  to 
be  the  American  Blackstone  and  timely  official  expounder 
of  the  constitutions  at  the  National  metropolis  and  capital 
as  Justice  Wilson  himself.  Young  Smith  was  apparently 


34 


not  even  considered.  It  was  late  in  the  year,  however,  be¬ 
fore  the  lectures  were  ready  (i.  e.  1790) — about  the  time  the 
new  State  Constitution  went  into  effect.  It  was  on  Wed¬ 
nesday  at  6  o’clock,  the  close  of  the  mid-winter  day  of  De¬ 
cember  15th,  that  the  President  and  other  National  and 
State  officers  of  the  government  buildings  at  Sixth  and 
Chestnut  Streets,  went  over  to  Fourth  Street,  below  Arch, 
and  gathered  on  the  main  floor  of  the  assembly  room  of 
the  college,  while  other  attendants,  citizens  and  students, 
filled  the  gallery,  and  wives  and  sisters  were  much  in  evi¬ 
dence.  Indeed,  the  distinguished  political  scientist  had  to 
confess  that  this  was  the  first  “fair  audience”  he  ever  ad¬ 
dressed. 

With  characteristic  vigor  and  instinct  for  essentials, 
if  not  impatience  of  detail,  he  showed  the  necessity  for  a  new 
outlook  on  law;  the  fundamentals  were  now  so  different 
from  other  countries.  The  Inns  of  Court  must  be  replaced 
by  University  provision  for  law  as  both  a  general  and  pro¬ 
fessional  study.  The  British  Constitution  and  law  must 
hereafter  be  studied  and  used  with  great  caution,  as  not  only 
different,  but  vitally  inferior  to  the  American.  Writers  on 
British  law,  like  Blackstone,  must  be  studied  with  great 
caution,  and  he  gives  marked  attention  to  the  nature  of  the 
warning,  namely,  that  they  did  not  merely  not  appreciate 
the  great  principle  that  the  source  of  power  is  in  the  people, 
but  some  speak  ambiguously  about  it  as  a  basis  of  constitu¬ 
tional  law,  and  some  flatly  deny  it,  as  does  Blackstone  him¬ 
self.  “The  Fate  of  sovereignty,”  said  Wilson,  “has  been 
similar  to  that  of  the  Nile.  Always  magnificent,  always  in¬ 
teresting  to  Mankind,  it  has  become  alternately  their  Bless¬ 
ing  and  their  Curse.  Its  origin  has  often  been  attempted  to 
be  traced.  The  Great  and  the  Wise  have  embarked  in  the 
Undertaking;  though  seldom,  it  must  be  owned,  with  a 
Spirit  of  just  Enquiry;  or  in  the  direction  which  leads  to 
important  discovery.  The  Source  of  Sovereignty  was  still 
concealed  beyond  some  impenetrable  mystery,  and,  because 


■ 


35 


it  was  concealed,  Philosophers  and  Politicians ,  in  this  in¬ 
stance,  gravely  taught  what,  in  the  other ,  the  Poet  had 
fondly  fabled ,  that  it  must  be  something  more  than  human. 
It  was  impiously  asserted  to  be  divine.  Lately,  the  Enquiry 
has  been  recommenced  with  a  different  Spirit,  and  in  a  new 
Direction;  and,  although  the  Discovery  of  Nothing  was 
very  astonishing,  yet  the  discovery  of  something  very  use¬ 
ful  and  true  has  been  the  Result.  The  dread  and  redoubt¬ 
able  SOVEREIGN ,  when  traced  to  his  ultimate  and  gen¬ 
uine  Source,  has  been  found,  as  he  ought  to  have  been 
found,  in  the  free  and  independent  MAN.  This  Truth,  so 
simple  and  natural,  and  yet  so  neglected  or  despised,  may  be 
appreciated  as  the  first  and  fundamental  Principle  in  the 
Science  of  Government.” 

He  was  to  deliver  twenty-four  lectures  a  year,  and  by 
the  time  his  first  course  was  finished,  in  the  spring  of  1791, 
a  still  more  formidable  undertaking  appeared  on  the  horizon. 
That  there  was  a  great  need  for  an  authoritative  digest  of 
State  laws  under  the  new  Constitution  was  believed  by  all 
who  had  to  do  with  government.  It  is  doubtful  if  any  one 
would  realize  it  more  quickly  than  Wilson,  and  did  he  but 
realize  it,  it  would  be  wholly  in  keeping  with  his  courageous 
attempts  to  secure  great  results,  if  he  took  measures  to 
secure  this  result.  Indeed,  there  are  some  indications  that 
point  to  a  probability  that  he,  more  than  any  one  else,  felt 
the  need  of  a  digest  of  and  commentaries  on  both  State  and 
National  law,  and  felt  an  honorable  desire  to  provide  them 
himself,  under  proper  authority.  At  any  rate,  on  March 
5th,  the  State  House  of  Representatives  passed  a  resolution 
providing  that  Wilson  be  appointed  to  do  it  for  the  State 
and  be  instructed  to  draw  on  the  treasurer  for  a  specific 
amount  for  expenses.  It  went  to  the  Senate  and  that  body 
asked  for  a  Committee  of  Conference.  The  House  ap¬ 
pointed  a  Committee  who  insisted  that  the  Senate  Committee 
put  the  points  of  conference  in  writing,  and  the  Senate  Com¬ 
mittee  refused,  intimating  that  the  course  of  the  House 


36 


Committee  was  unconstitutional  in  the  matter  of  the  treas¬ 
ury.  Wilson  was  accustomed  to  see  legislative  personnel 
and  action  change,  and  he  undertook  the  work,  with  the  hope 
that,  the  Senate  would  be  brought  around  in  due  time.  At 
any  rate,  on  August  24th,  he  reported  progress  to  the 
House,  and  this  shows  that  he  was  so  full  of  a  realization  of 
what  ought  to  be  done  for  both  the  State  and  Nation  in  sim¬ 
plifying  the  literary  medium  of  law  that  he  was  willing  to 
take  all  needful  risks  to  bring  it  about.  During  that  autumn 
of  ’91  he  and  President  Washington  had  an  interview  on 
the  subject  of  a  similar  digest  of  National  law,  and  on  the 
last  day  of  the  year  he  enclosed  the  President  a  copy  of  his 
letter  to  the  House  on  the  State  digest,  and  another  on  the 
National  one.  Some  of  this  latter  communication  is  very 
striking.  He  said  that  the  difficult  and  delicate  line  of 
authority  between  State  and  Nation  must  be  run,  and  it 
could  be  done  with  peculiar  advantage  in  connection  with 
Pennsylvania,  for,  said  he :  “With  an  express  and  avowed 
reference  to  the  Constitution  of  the  United  States  that  of 
Pennsylvania  has  been  sedulously  framed.  It  is  probable, 
therefore,  that  the  Directions,  which  the  line  above  men¬ 
tioned  ought  to  take,  may  be  traced  with  a  satisfactory 
degree  of  Clearness  as  well  as  Precision ;  and  that  neither 
Vacancies  nor  Interferences  will  be  found  between  the  Limits 
of  the  two  Jurisdictions.”  He  desires  to  do  both  and  gives 
his  reasons :  “In  the  formation  of  both  constitutions,  that 
of  the  United  States  and  that  of  Pennsylvania,  I  took  a 
faithful  and  assiduous  Part.  So  far,  therefore,  as  my  Abili¬ 
ties  can  reach,  I  may  be  supposed  to  know  their  Principles 
and  their  connections ;  and  the  various  relations  and  depend¬ 
encies ,  which  their  Principles  and  Connections  ought  to 
produce  in  the  different  parts  of  legislation.  In  the  study 
and  in  the  practice,  too,  of  law ,  and  systematic  politics ,  I 
have  been  engaged  for  a  time  considerably  long,  and  on  a 
scale  considerably  extensive.  I  am  already  employed  in 
executing  one  part  of  the  great  plan.  If  I  can  command  a 


37 


tolerable  share  of  success  in  that  part,  I  can  command  an 
equal  share  in  the  other  also.  Nay,  I  believe  that  both  parts 
can  be  executed  together  better  than  either  part  can  be 
executed  separately.”  It  is  peculiarly  interesting  to  know 
that  Washington  submitted  the  matter  to  his  Attorney-Gen¬ 
eral,  Edmond  Randolph,  and  that  gentleman  took  two  sit¬ 
tings  to  writing  the  President,  of  whose  attitude  he  was  not 
quite  sure,  one  of  the  most  adroit  epistles  to  secure  negative 
action  that  ever  was  produced. 

It  is  a  curious  coincidence,  and  significant,  that  a  Senate 
and  a  distinguished  Southerner  should  have  aided  in  pre¬ 
venting  Wilson,  the  advocate  of  the  people  and  of  nation¬ 
ality,  from  becoming  our  American  Blackstone  and  becom¬ 
ing  the  official  literary  interpreter!  of  our  constitutions. 
Whether  he  would  ever  have  finished  the  work  alone,  as  he 
attempted  to  do  for  awhile,  at  least,  cannot  be  known,  nor 
need  we,  his  posterity,  demand  that  he  do  a  greater  work 
than  the  mighty  work  that  he  did  do.  Possibly  it  required 
a  half  century  and  a  civil  war  to  realize  Wilson’s  great 
teachings  regarding  the  Constitution — possibly  it  will  re¬ 
quire  even  more  than  the  century  that  has  already  passed  to 
do  so.  With  the  failure  of  these  projects  came  the  merging 
of  the  college  and  university  when  his  second  course  of  law 
lectures  was  but  partially  finished;  and,  although  the  new 
institution  called  him  to  the  chair,  he  felt  his  mission  accom¬ 
plished,  and  thereafter  devoted  himself  to  the  work  of  the 
Supreme  Court  and  his  private  affairs. 

Wilson  was  now  in  his  fiftieth  year.  The  story  of  the 
work  of  the  Supreme  Court  during  the  period  he  sat  upon  its 
bench  has  been  well  told  by  Carson  in  his  history  of  that 
body.  Here,  as  elsewhere,  Wilson  stood  on  the  principles 
of  nationality  and  the  sovereignty  of  the  citizen.  It  was  not 
long  after  the  period  just  described  that  the  most  notable  de¬ 
cision  of  his  service  was  made,  when  one  was  rendered  early 
in  1793  in  the  celebrated  case  of  Chisholm  vs.  Georgia,  when 
Justice  Wilson  struck  the  keynote  of  the  question  early  in 


3« 


the  deliberations  of  the  court  by  saying  that  the  problem 
“may,  perhaps,  be  ultimately  resolved  into  one  no  less  radi¬ 
cal  than  this :  ‘Do  the  people  of  the  United  States  form  a 
nation  V  ”  And  such,  indeed,  the  problem  was,  and  it  was 
decided  in  the  affirmative,  although  to  undo  a  specific  feature 
of  the  decision  the  Eleventh  Amendment  was  at  once  passed. 
“The  principles  of  the  decision,”  says  D.  O.  Kellogg  in  a 
suggestive  sketch  of  Wilson  in  Lippincotfs  for  February, 
1899,  “have  long  since  overridden  the  amendment;  for, 
while  we  cannot  directly  sue  a  sovereign  State,  the  lawyers, 
forced  by  the  exigencies  of  a  decent  equity,  have  provided 
for  suing  officers  of  government  whose  costs  and  penalties 
the  State,  and  even  the  United  States,  now  freely  pay 
out  of  the  taxes.  I  am  persuaded,”  continued  Mr.  Kellogg, 
“that  James  Wilson  was  on  the  short  cut  to  a  better  and  an 
ultimate  solution  of  this  problem  of  political  jurisprudence, 
so  vital  to  the  future  of  democracy.”  And,  says  Mr.  Car- 
son,  also:  “The  importance  of  the  decision,  however,  re¬ 
mained.  *  *  *  The  doctrine  of  an  indissoluble  Union, 

though  not  in  terms  declared,  was  in  its  elements  contained 
in  this  decision,  which  proved  of  priceless  value  in  deter¬ 
mining,  at  the  very  outset  of  our  National  career,  the  true 
character  of  our  government.”1 

It  was  soon  after  this  that  Justice  Wilson  met  Miss 
Hannah  Grey,  of  Boston,  who  made  such  an  impression 
upon  him  that  on  June  20,  ’93,  he  wrote  her  a  proposal  of 
marriage  (the  letter  is  now  in  the  possession  of  Mr.  Gratz, 
of  this  city),  which  was  accepted,  and  the  union  soon  fol¬ 
lowed.  It  was  shortly  before  this  that  his  discussion  of  the 
Constitution  was  published  in  London  as  commentaries,  and 
also  that  General  St.  Clair  wrote  that  he  understood  that  he 
(Wilson)  was  now  “as  rich  as  a  Jew.”  His  private  opera- 

Befferson  tells  of  a  pasquinade  published  at  the  time  of  the 
trouble  with  the  French  over  Citizen  Genet,  in  which  Washington 
and  Wilson  were  represented  as  suffering  decapitation  in  the 
French  manner  because  of  their  attitude  toward  that  general  sub¬ 
ject. 


39 


tions  in  land  and  in  industrial  affairs  were,  indeed,  on  a  scale 
like  those  of  his  friend,  Morris.  It  was  two  years  after  this 
date  that  he  made  that  stupendous  purchase  of  Southern 
lands  referred  to — as  lands  were  the  great  field  of  invest¬ 
ment  in  those  days  as  industrials  are  in  our  own.  Two 
years  more  and  the  severe  symptoms  of  the  panic  began. 
In  ’96  it  became  evident  that  Morris  was  about  to  fail,  and, 
as  is  often  the  case,  an  insignificant  and  vitriolic  creditor 
precipitated  the  attack  on  that  great  financier,  who,  finally, 
on  February  15,  ’98,  according  to  the  strikingly  logical  legal 
proposition  of  that  day,  that  if  a  man  got  in  debt  the  way  for 
him  to  be  enabled  to  pay  it  was  to  lock  him  up  so  he  couldn’t 
do  so — according  to  this  law,  the  great  financier  of  the 
Revolution  was  imprisoned  in  the  old  Prune  Street  jail. 
The  attack  on  Wilson  and  others  began  in  ’97,  about  the 
same  time,  but  after  Morris’s  incarceration  certain  creditors 
began  to  threaten  him.  He  was  at  this  time  out  on  his  col¬ 
league,  Justice  Iredell’s,  circuit  in  North  Carolina,  his  head¬ 
quarters  being  the  latter’s  home  in  Edenton.  Even  there 
the  debtor’s  law  prevailed,  and  Wilson  was  arrested  on  a 
debt  which,  said  he,  “was  originally  none  of  mine.”  The 
terrible  crash,  to  his  high  spirit,  proved  too  heavy  a  burden, 
and  his  health  broke  under  it,  causing  those  who  made  the 
attack  to  reconsider  their  action.  “His  mind,”  said  Mrs. 
Wilson,  in  a  letter  to  Wilson’s  son,  on  September  1st,  after 

his  death  three  days  before,  on  the  28th  ultimo,  “had  been 

* 

in  such  a  state  for  the  last  six  months,  harassed  and  per¬ 
plexed,  that  it  was  more  than  he  could  possibly  bear,  and 
brought  on  a  violent  nervous  fever.  I  never  knew  of  his 
arrest  till  since  his  death,  and  now  can  account  for  many 
things  he  said  in  his  delirium,”  for  he  was  not  sensible  for 
five  minutes  at  a  time  during  his  long  illness,  which  finally 
developed  into  strangury,  which  caused  his  death. 

Justice  Iredell,  a  brother-in-law  of  Governor  Johnston, 
had  hastened  home,  and  arrived  just  before  his  death.  By 
this  time  Wilson’s  affairs  were  in  absolute  wreck,  and  his 


40 


son,  Bird,  a  young  lawyer  barely  of  age,  was  left  to  bear 
the  family  responsibilities.  To  remove  the  remains  of  the 
great  jurist  and  statesman  so  far  was  out  of  the  question. 
Governor  Johnston’s  beautiful  country  seat,  on  the  banks  of 
the  Albemarle,  with  its  tiny,  evergreen-marked  family 
burial  lot,  opened  its  hospitable  gates,  and  all  that  re^ 
mained  of  this  great  lover  of  the  people  was  deposited  in  its 
soil,  and  that,  too,  in  a  manner  which  seemed  to  say: 
“Here,  as  in  a  receptacle,  he  shall  lie,  in  the  company  of  our 
own  distinguished  dead,  until  the  people  of  Pennsylvania 
and  the  United  States,  who  owe  him  so  great  a  debt  of 
gratitude,  shall,  in  some  other  century,  know  his  great 
legacy  of  liberty  and  law,  and  come  to  give  him  adequate 
burial.”  And  that  time  has  come,  and  the  people  of  our 
State  and  Nation,  before  the  leaves  of  autumn  are  all  fallen, 
are  to  bring  the  remains  of  this  great  man  to  rest  in  state 
in  our  National  Hall  of  Liberty  and  Law  awhile,  and  then 
find  an  abiding  place  in  the  dust  of  Christ  Church  beside 
those  of  the  bride  of  his  youth.  And  I  do  furthermore 
profoundly  believe  that  the  people  of  Pennsylvania  will 
erect  to  his  memory,  near  the  shadow  of  the  statue  of  Penn 
himself,  an  image  that  will  say  daily  to  her  people  that  here 
was  one  of  the  greatest  friends  of  their  liberties.  And  I 
may  say  even  more,  and  on  a  basis  which,  if  I  were  now  at 
liberty  to  reveal  it,  would  warrant  an  equally  serious  belief, 
that  I  am  confident  before  a  half-dozen  years  shall  pass,  the 
visitor  at  our  National  capital  may  pause  before  a  heroic 
figure,  strikingly  erect  and  having  in  his  hands  a  scroll,  with 
“Constitution”  embossed  thereon,  and,  if  it  shall  be  inquired 
by  whom  it  was  erected,  I  know  not  what  will  be  the  reply, 
but  I  know  what,  by  all  the  laws  of  gratitude,  should  be; 
and  I  hope  the  inquirer  may  be  directed  for  answer  to  these 
words  emblazoned  on  the  pedestal's  base :  “We,  the  People 
of  the  United  States.” 


(jay  lord  - - 

PAMPHLET  BINDER 

Syracuse,  N.  Y. 
Sfockton,  Calif. 


